HKSAR v. Yu Wei Hao

HCMA000737/2003

HCMA 737/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 737 OF 2003

(ON APPEAL FROM ESCC 2268/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 9 October 2003

Date of Judgment: 9 October 2003

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J U D G M E N T

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1.The Appellant in this case was charged with one charge of possession of a forged identity card, he pleaded guilty to the charge and was sentenced to 12 months imprisonment.

2.The facts are quite simply that the Appellant was stopped by a police officer and whilst the police officer was searching him, the Appellant took out a Hong Kong identity card from his trousers' pocket and squeezed it. The police officer upon seeing that quickly took the card away from the Appellant and noticed that the photograph on the identity card resembled the Appellant. The name on the identity card was for a person called Kong Lap Yuen. Under caution, the Appellant claimed that he had picked the card up on the street.

3.The day of his arrest was on 14 July 2003 and it is not disputed that the Appellant came to Hong Kong on 13 July 2003. Upon examination by the Government Chemist, the card was found to be forged.

4.The learned Magistrate in considering sentence was alive to the fact that the Appellant having been found just the day after his arrival in Hong Kong with the forged identity card would give rise to the inference that he had possession of this forged identity card or rather arranged for possession of this forged identity card prior to his arrival here. And the Appellant must have been aware of the danger of being found in possession of such a document because he tried to destroy it. The learned Magistrate then went on to consider that since illegal immigrants received 15 months for use of a forged identity card, the Appellant should not receive anything less. Having considered all the mitigating circumstances, she imposed a sentence of 12 months.

5.Counsel for the Appellant, Mr Poots, submitted four grounds of appeal, mainly that the sentence was manifestly excessive because the learned Magistrate had erred in law when she failed to distinguish possession and use of a forged identity card, and that the learned Magistrate also erred in saying that the Appellant had intended to use the forged card. Obviously, there is no direct evidence of that but the learned Magistrate could draw an inference from the surrounding circumstances. The learned Magistrate did consider the case of Chan Man Mo prior to sentencing the Appellant.

6.But today, Mr Poots, apart from the case of Chan Man Mo, also submitted two other cases, the case of HKSAR v. Chen Han Wai HCMA 148 of 2003 and also the case of HKSAR v. Xu Houde HCMA 562 of 2003.

7.Miss Wong, who appears for the Respondent in this case also referred me to share two cases and submitted that the present case before me is similar to those two cases.

8.I agree with that submission particularly in relation to the case of Chen Han Wai, I therefore allow the appeal and the sentence of 12 months is quashed and the Appellant is sentenced to 8 months imprisonment.

Representation:

Miss Wong Sze Lai Lily, SGC of Department of Justice, for the Respondent

Mr Poots Laurence James, instructed by Messrs Samuel Ho & Co., assigned by Director of Legal Aid, for the Appellant